Media bills before House fail constitutional test

There are two proposed legislation that would have profound effects on media work in the country.

These are the Media Council Bill, 2013 and the Kenya Information and Communications (Amendment) Bill, 2013. The latter will shortly go through its second reading in parliament.

If these Bills are passed in the form in which they have been published, they will have great impact on the media landscape for journalists and for the country.

The Bills are not a matter of happenstance. The need to pass media legislation is a command of the Constitution.

It is intended that the legislation regarding the media industry be amended to attune it to the changes that the new Constitution intended to introduce. The constitutional freedom of the media and the right to information were non-existent under the previous constitution.

Article 34 of the Constitution is clear that the State shall not control or interfere with any media establishment. The article adds that any regulatory body with authority over the broadcasting and electronic media shall be independent of control by government or any commercial or political interest.

Therefore, the litmus test of any media legislation must satisfy the two standards. These are first, that the media must be cushioned against state control and, second, that any regulatory body must also be independent. This is understood to mean freedom from oversight or supervision by any of the arms of government including but not limited to the agents or officers of the State.

A look at the two Bills reveals some concerns and possible doubts as to whether these principles have been considered adequately––or at all.

SUPERVISOR WITH BIG STICK

For instance, the Media Council Bill, 2013 is intended to regulate media establishments and journalists. However, this Bill would appear to reverse the balance of power in the media from regulation to control in favour of the Executive generally through the Cabinet secretary in charge of information and communication. The Cabinet secretary is given the power of life and death over the Media Council.

The Bill empowers the Cabinet secretary to effectively dissolve the current Media Council by declaring vacancies in the Council and convening a selection panel to choose candidates for appointment to the successor Media Council.

Second, the possibility of independence of this selection committee is remote because the Cabinet secretary is empowered to be the one to provide facilities and support for the panel in the discharge of its functions. The view is that this perpetuates the patronage of the panel to the Cabinet secretary.

After conducting interviews with the applicants, the panel submits 12 names to the Cabinet secretary. From these names, the secretary shall select six persons for appointment as members of the council. The panel shall also submit the names of a further three persons (3) to the Cabinet secretary from whom the President shall appoint the chairperson of the council.

POWERFUL CABINET SECRETARY

The Bill further gives the Cabinet secretary the unbridled power to reject any of the names of the nominees submitted by the panel and request alternative names. Theoretically, therefore, the Cabinet secretary shall retain the power to reject any nominees for membership of the Media Council until he is personally satisfied with the persons.

Put simply, the net effect of the Bill would be to subordinate the appointment of the members of the Media Council to the Cabinet secretary, a position that would completely negate the constitutional requirement of independence.

Of equal concern is the section of the Bill that empowers the Cabinet secretary to amend the Code of Conduct for the Practice of Journalism. Although it is stated that this shall be done in consultation with the Media Council, the driving and operational mind shall remain the Cabinet Secretary. There does not appear to be any requirement for public participation in this kind of endeavour.

This power to make rules of ethics for media practitioners is effectively the power to regulate. and in my view, contradicts the Constitutional requirement for a free media and one devoid of regulation by government. Our reading of the fulfillment of this constitutional edict is that the code of ethics of journalism ought not to have the imprint of the Executive at all.

These concerns persist when focus is placed on the second of these Bills: the Kenya Information and Communications Bill, 2013. The Kenya Information and Communications (Amendment) Bill, 2013 is intended to amend the Kenya Communications Act (1998) to ensure compliance with the Constitution.

PERVASIVE INFLUENCE

Some examples of the pervasive influence of the Cabinet secretary appear to have been retained in this Bill. The Cabinet secretary again retains the power to dissolve the board of the Current Communications Commission of Kenya and replace it by inviting applicants to and appointing qualified persons to the board of the Communications Authority of Kenya (CAK) which is meant to substitute the current Communications Commission of Kenya.

The same powers are retained by the Cabinet secretary for removal of any board member. A section of the Bill proposes that any complaints against a member of the board shall be submitted to the Cabinet secretary for determination as to whether there is a ground for removal of the board member.

In case the subject of the complaint is the chairperson of the CAK board, the Cabinet secretary shall forward the complaint together with recommendations to the President.

The powers of the Cabinet secretary to determine the merits of the complaint effectively gives him/her powers to appoint, to influence the conduct and to remove board members. It is unlikely to meet and satisfy the constitutional threshold first for independence of the commission from political influence and interests.

Second, the Bill seeks to create a Broadcasting Standards Committee with the declared objective of “developing standards for broadcasting content and regulating and monitoring compliance of those standards. A reader of the Constitution in its strict terms would see a clear violation of Article 34 as it presents a danger of this committee becoming a censorship authority.

It is my considered view that this power to regulate content turns the authority and this committee from regulation as contemplated in the Constitution into a controller of content which the Constitution did not intend. Of greater concern is that the committee will be established by the CAK without reference to any public participation generally or to industry practitioners and broadcasters specifically.

It is also possible that the roles of this committee and those of the Media Council’s complaints commission would be in operational conflict. The Media Council’s complaints commission already addresses (and rightly so) the issues of content across all media and has dispute resolution mechanisms for this.

The proposed Authority under this Bill should rightly regulate the use of frequencies and technical aspects of broadcast generally and communication but not editorial issues of content.

For the above-mentioned reasons, there is reasonable apprehension that even if the Media Council of Kenya Bill, 2013 and the Kenya Information and Communications (Amendment) Bill are passed by Parliament and are enacted, they may face several challenges as to their conformity with the constitution.

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